Court Upholds State Athletic Association's Exclusion of Boys from Girls Gymnastics Competition

A state appellate court in Wisconsin upheld yesterday a policy of the Wisconsin Interscholastic Athletic Association that excludes boys from girls' gymnastics competitions.

The plaintiff was Keith Bukowski, at student at Stevens Point Area High School. He challenged the WIAA policy under the Equal Protection Clause of the 14th Amendment, Title IX, and state law grounds, and lost on all claims. I haven't seen the briefs, but based on what the court says about the plaintiff's argument, it looks like Bukowksi didn't have the world's best attorney.

The court dismissed the Equal Protection claim on the grounds that the WIAA is not a state actor. The Supreme Court has held that Tennessee's state interscholastic athletic association to be a state actor, and the 6th Circuit found similarly about Michigan's. So arguing that the WIAA is as well is not a crazy new idea. From the Tennessee and Michigan cases, we know that courts are looking for evidence of a tight relationship between the association and the public schools it represents. It will consider things like whether the asscociation is primarily made up of public schools, whether its funds come from the schools (such as dues or ticket revenue from state tournaments), and whether the state treats the association's employees like state employees. But in this case, "The only evidence Bukowski points to as purportedly establishing that the WIAA is a state actor is an affidavit by the superintendent of the Stevens Point School District, in which the superintendent averred that SPASH receives federal funding. " All the lawyer would have to do is find the WIAA bylaws (which are available on line) and s/he could have at least proven that federal funds go from SPASH to WIAA in the form of dues and (potentially) fines. The lawyer could have also easily proven that the WIAA's board of control is made up primarily of representatives from public schools. On the other hand, it doesn't appear that WIAA employees are treated like state employees (they have their own pension plan). But this isn't necessarily a required element of state action, so this doesn't excuse the attorney for not presenting a stronger case.

The court also dinged Bukowski's Equal Protection argument on the alternative grounds that his attorney argued the wrong legal standard when s/he suggested that the WIAA policy did not survive "strict scrutiny." Now the Supreme Court's Equal Protection caselaw is not a model of clarity, but any first year law student can tell you that "intermediate scrutiny" is the correct standard for EP gender discrimination claims.

Moreover, the Title IX arguments here were excedingly weak:

Title IX argument on appeal consists solely of quoting the language of Title IX and then stating that "Title IX has been interpreted to provide that policies prohibiting boys from participation in girls' sport is a permissible means of attempting to insure equality of opportunity for girls in interscholastic sports and of redressing past discrimination." That is the entirety of his Title IX argument; Bukowski provides no further explanation of how Title IX applies to his circumstances and provides no relevant legal authority in the form of Title IX cases.

Bukowski's lawyer would have had a chance if s/he'd bother to read the caselaw. Because gymnastics is non-contact sport, Title IX regulations say that members of the "historically undereppresented sex" must have an opportunity to compete, whether by getting their own team or being allowed to join the existing team. There are courts that have construed "underrepresented" to mean underrepresented in the school's athletic program overall, generally, rather than underrepresented in a particular sport. So there is no guaranteed victory for Bukowski on the merits of his Title IX claim. But it is shocking that his attorney did not even try.

The attorney didn't even bother to attempt to show that WIAA receives federal funds, without which, Title IX can't possibly apply. A federal district court in Michigan held that Title IX governed a state athletic association because the assocaition received dues from federally-funded public schools. Its bylaws prove that WIAA receives dues from federally-funded schools. So this is an argument that Bukowski's lawyer could have and should have made.

And I don't know anything about Wisconsin statutory or constitutional law, but I do know this one- sentence argument is not going to prevail: "For all of these reasons, the actions of the WIAA also violate the Wisconsin Constitution and WI Stat. 118.13."

Last, I can't figure out why Bukowski's lawyer didn't sue the school. SPASH is clearly a federal-funding recipient subject to Title IX. The attorney could have argued that SPASH must either opt out of the WIAA and let Bukowksi on the gymnastics team or forego its federal funds. If this argument against SPASH prevailed, then it could likely be levied against all WIAA public school members, until eventually WIAA risks losing them all as members. I bet they'd change the policy before that happened.